tag:blogger.com,1999:blog-58498108098539686712024-03-13T06:41:05.672-07:00X-JudgeH. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.comBlogger46125tag:blogger.com,1999:blog-5849810809853968671.post-91687753568114167992010-05-15T10:00:00.000-07:002010-05-15T10:02:36.975-07:00I am now blogging exclusively for the Huffington PostI no longer post at this site. I write exclusively for the <span id="gtbmisp_1" style="border: 0pt none ; margin: 0pt; padding: 0pt; background: transparent none repeat scroll 0% 0%; font-family: serif; font-style: normal; font-variant: normal; font-weight: bold; font-size: 100%; line-height: normal; font-size-adjust: none; font-stretch: normal; position: static; -moz-background-clip: border; -moz-background-origin: padding; -moz-background-inline-policy: continuous; text-align: left; text-indent: 0pt; text-transform: none; color: red; text-decoration: underline; cursor: pointer;">Huffington</span> Post. Please search me there and become a fan. ThanksH. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-13485869867451429552009-12-29T15:13:00.000-08:002009-12-29T15:14:38.572-08:00I AM NOW BLOOGING ON THE HUFFINGTON POSTBecome A Fan!H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com3tag:blogger.com,1999:blog-5849810809853968671.post-30517691670284198642009-05-27T14:43:00.000-07:002009-07-09T15:00:14.360-07:00PERSONS WITH EMPATHY NEED NOT APPLYSeveral weeks ago, I woke to the television news that Judge Sonia Sotomayor's was nominated to the Supreme Court and was being opposed by Tom Fitton, president of Judicial Watch. When asked why, he responded: "Because President Obama picked her". I was somewhat taken with the honesty of that reply since it spoke the truth, namely that the organization would oppose anyone the President named. But he went on to explain that opposition by condemning the President's avowed desire to pick someone with "empathy" for those that society has chosen to ignore or discriminate against. Somehow Mr. Fitton and others seem to find this characteristic as a disqualifier; that being emphatic to the downtrodden is inconsistent with the rule of law; that one who has empathy should not be seated on The Supreme Court of The United States. We should have only those persons serving who have no empathy----no one like Jesus Christ, Mother Teresa, Bishop Tutu, etc. need apply. They would not make the cut.<br /><br />But then ironically, a conservative spokesperson condemned the judge for her decision in the <span style="font-style: italic;">New Haven</span> case, pointing out how white firefighters who risked their lives in the 9/11 attack were denied promotions and increased income they earned and deserved because of her ruling. Or to put it bluntly, in following what she perceived to be the correct application of the law she neglected to feel "empathy" for those who were adversely affected by her ruling.<br /><br />Because of the limited size of the Supreme Court, it cannot possibly be representative of every race, religion or ethnic group in America; nor was it meant to be. But diversity brings understanding to the Court. There can be no doubt that a judge who has experienced discrimination, sexual harassment or other life-forming experiences draws upon them in considering and deciding cases. Empathy because of those experiences is a characteristic to be embraced, not condemned. Experience informs but does not dictate the outcome.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com3tag:blogger.com,1999:blog-5849810809853968671.post-39890827638273636272009-05-15T16:54:00.000-07:002009-06-17T18:14:08.353-07:00THE TRUTH COMMISSSION DILEMMAIn most instances, the law allows one to plead inconsistent and alternative defenses. The Bush administration has used it to a fare-thee-well. For instance, 1) it denies that it tortured; 2) if it did torture, the torture was authorized by advice of counsel; 3) even if the advice of counsel was tainted, the torture was justified by the thousands of lives it saved; 4) and in any event, the Democrats are jointly responsible because they knew and acquiesced in the mistreatment of detainees. The latter accusation is apt to keep the issue burning indefinitely and fires the demand for the further release of photos, documents and an independent "truth commission". It certainly detracts from the more important crises facing the country. What Nancy Pelosi knew and when she knew it hardly stems the flood of foreclosures, and whether she knew and failed to complain doesn't quite equate with actually authorizing and directly ordering torture. Somehow the Republicans see no inconsistency in claiming that the Bush administration did nothing wrong in their treatment of detainees, BUT Nancy Pelosi knew what they were doing and failed to complain or take steps to stop it!<br /><br />As a result, the current administration and the country face a dilemma. The release of more photos and further evidence of prisoner abuse is certain to arouse our enemies and increase their recruitments. The failure to do so runs contrary to the President's commitment to transparency and results in concealing what may actually turn out to be war crimes. Some suggest it is the Pentagon Papers redux----that unless some real and imminent threat can be established the First Amendment trumps hypothetical harm---no matter how likely it is to occur. Despite the denials by the Bush administration, by now the country knows that acts of torture were committed against detainees. If the purpose of a commission is to determine the extent of the torture and who authorized or directed it, I think that merely serves to lay political blame and would not be warranted with so many other issues facing the country.<br /><br />On the other hand, if such a commission, independent counsel or grand jury is created with the expectation and purpose that it might recommend criminal prosecution or other sanctions, to me that would be a worthwhile purpose. I understand the President's concerns about looking back rather than going forward and that such an investigation and possible indictments might appear to be viewed as politically motivated. But we criticized the previous administration for using the Justice Department for political purposes, can we now justify <span style="font-weight: bold;">failing</span> to use it for the same reasons, although conceding the current motives are laudable while the past were not. Admittedly, indicting and trying high level officials of the opposition party, particularly for such high crimes, is a wrenching prospect and establishes a dangerous precedent. The questions are:<br /><br />What will it do to us as a nation if we pursue it? What will it say about us, if we do not?H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-39727799713802600702009-04-29T11:01:00.000-07:002009-05-12T14:24:58.269-07:00THE VICTORIAN ERA LIVESA few decades from now law students will learn (and probably laugh) that the United States Supreme Court (<span style="font-style: italic;">F.C.C. v. Fox Entertainment) </span>again upheld the federal government's right to prohibit the speaking of certain "dirty" words on television and substantially fine those who uttered or permitted such words to be uttered. The compelling First Amendment arguments have been made and rejected. The statute and the regulations which have followed it, insofar as they prohibit "indecent language", should have been invalidated on constitutional grounds, but having failed that let's just recognize the fact that they (the statute and regulations) are silly and hypocritical-----admittedly "silly and hypocritical" are hardly profound legal arguments.<br /><br />The underlying presumption of the legislation is to shield children from such language. The fact is that unless children are confined to the house and prohibited from reading books or magazines, they will be exposed to these words elsewhere and often. The networks do not provide a "safe haven". Please understand. I am not an expletive advocate. I do not swear except for an occasional excited excrement utterance on the golf course; I never swore in front of my children and did not and do not want them to swear. But what I find silly and hypocritical is the fact that every day and all day on television at least one hundred persons are murdered, shot, stabbed, robbed, beaten, strangled or mutilated, and all of these acts are depicted in visual form. But what is it that we seek to protect our children from: WORDS of a sexual or excretory origin. The Justices of the Supreme Court cannot bring themselves to actually use the words in their opinions! Why, because of all of those 5 year <span class="blsp-spelling-error" id="SPELLING_ERROR_0">olds</span> out there waiting and rushing to read those slip opinions from the Court the moment they roll off the presses?<br /><br />Assuming any harm can be caused by watching television (a concept much disputed), how can the fear that children hearing "curse" words may repeat them be greater than the worry that they might copy the violence on television? Although I believe that neither should be prohibited, given the choice, if children are going to emulate television, I would prefer they say "shit", rather than kill somebody.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-34536010254182711522009-04-22T16:37:00.000-07:002009-04-23T14:08:04.096-07:00THE NEW RULE OF LAW: SEE, IT WORKSFormer officials of the Bush Administration and its defenders respond to criticism of its torture policies (or as they are wont to call them "enhanced interrogation") by invariably claiming as justification that no attacks have occurred since 9/11. That contention reminds me of the old joke about the New York woman who sends her husband to the psychiatrist because he is always snapping his fingers. When the psychiatrist asks him why he constantly snaps his fingers, he says: "To keep the elephants away." The psychiatrist responds by saying that there are no elephants in New York. Whereupon the patient responds: "See it is working!" The Bush Administration tortured; there were no further attacks; ergo, according to them, torture works!<br /><br />Although the general consensus among the experts is that torture does<span style="font-weight: bold;"> not</span> provide reliable information, former Vice President Dick Cheney makes veiled suggestions that if only President Obama would declassify certain documents the practical value of torture would immediately become evident. And I ask this question in response: Since when do we judge violations of the law or the Constitution based upon whether or not those violations produce some benefit? I can think of any number of constitutional violations that would or could produce benefits-----the illegal search of thousands of homes and the seizure of illegal guns could save thousands of lives; sentencing persons to prison without the benefits of trial or appeal would save hundreds of millions of dollars; coercing confessions would save investigative time and expense, etc.---you get the picture. "See, it works" (even if true) is not the underpinning of the Rule of Law.<br /><br />Torture is illegal and immoral, and no risk/benefit analysis can make it either legal or moral.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-14219760531733245312009-02-04T09:12:00.000-08:002009-06-03T20:22:01.733-07:00ESCAPE FROM GUANTANAMOThose who oppose the closing of Guantanamo Prison seem to suggest that the prisoners will be flown to Kennedy Airport, released from custody with a new suit and $100 to buy explosives to blow up the first Starbucks they can find. It is reminiscent of Justice Scalia's bizarre reasoning in the <em>Boumedienne</em> case, that if the detainees are granted hearings, they will be freed to return to the battlefield and kills more Americans; ergo they should not receive hearings, completely ignoring the fact that many of the detainees were and may be innocent. The closing of Guantanamo is a necessary move on the part of the Obama administration, because it has become the symbol of U.S. abuses and the vehicle for recruiting an ever-increasing army of terrorists.<br /><br />Closing it will not result in the arbitrary release of terrorists. It will necessitate a complete review of the detainees and the basis for their detention. Those for whom there is no legitimate basis to retain them will be released, even though to where remains a constant problem. Those for whom there is evidence of terrorist activity will be incarcerated elsewhere., and eventually subject to a hearing in accordance with the law, either military tribunals or civil courts. Some of the concerns about the ability to convict the real terrorists have been self-inflicted by the Bush administration. The mistreatment of prisoners may impede the prosecutions and, indeed, may even result in some acquittals. But here again we follow the Scalia logic at our peril: Terrorists who have been tortured may be acquitted as a result of the abuses and return to the battlefield; therefore they should not receive hearings in order to avoid that possibility. We cannot deny hearings to persons merely because we have violated their rights in the process.<br /><br />As to the fear of the disclosure of state secrets, I know as a former federal judge, that judges are perfectly capable of balancing the security of the country with the rights of the accused, through redactions, <span style="font-style: italic;">in camera</span> proceedings, etc. Although the Bush administration professed that it was concerned that trial disclosures could injure national security, I suspect it was more interested in concealing its abuses rather than protecting national security.<br /><br />Finally, fear about location of the detainees is unfounded. We have been able to imprison serial killers, murderers and other violent criminals for their respective lifetimes. There is no reason to believe that we are incapable of doing the same for terrorists. There is a valid concern that imprisonment on U.S. soil might enhance opportunities for terrorist activities by those who are truly terrorists, but as with other highly dangerous criminals, restrictions can be imposed to prevent such activities.<br /><br />The problems as to what should be done with the detainees remains the same no matter where they are detained. Moving them to a new location neither exacerbates nor diminishes those issues. But closing Guantanamo sends an important message to the world that the new administration sees and hears what has occurred at Guantanamo and rejects and condemns it. That message outweighs any practical problems which might arise from the closing. If ever there was a time for principle to trump the pragmatic, this is it.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-7591872180904616712009-01-03T11:47:00.000-08:002009-01-03T12:26:13.603-08:00LET BURRIS BELONGMr. <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Blagojevich</span> may be stupid, crazy, a scoundrel or even a criminal. but at this moment he is still a governor. He has not been indicted or impeached. Efforts to declare him <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">incompetent</span> to serve have been summarily dismissed. It is inconceivable to me that the mere existence of accusations against him can deprive him of his power of appointment to fill the vacant Senate seat, a power that he clearly has absent the controversy swirling about him. True, the Senate itself has something to say about who may join its august body, but that power relates to the integrity and qualifications of the elected or appointed senator, not to the person making the appointment.<br /><br />I would assume that both Presidents Nixon and Clinton continued to exercise their executive powers despite the accusations against them, and as to President Clinton, even during his impeachment hearings. Absent some evidence that Mr. Burris was party to the alleged scheme by the Governor to sell the appointment or is otherwise unqualified, it is difficult to accept the adamant position of the Senate to reject him.<br /><br />That effort so clearly undermines the presumption of innocence that it barely requires mention. But it takes it one step further, by premising it on guilt by association where the original guilt is yet to be established. If the charges against the Governor are true, I can certainly understand the desire not to recognize the appointment to such a <span class="blsp-spelling-corrected" id="SPELLING_ERROR_2">distinguished</span> and important position by someone who tried to sell it, but what we may want and what the law allows are not always the same.<br /><br />If and when Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Blagojevitch</span> is formally indicted or impeached, he will undoubtedly point to this appointment as evidence that he did not sell the office. Despite his obvious attempt even at this date to benefit himself, upholding the law is more important than thwarting his guile.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-73894999014780442212008-12-27T12:49:00.000-08:002009-04-03T11:19:42.208-07:00CRUEL AND UNUSUAL PUNISHMENT - INVALIDATING GAY MARRAIGES<div>The New York Times published the following letter from me on Dec. 26, 2008:<br /><br />While the California Supreme Court is considering whether Proposition 8 violates the state constitution, it might also consider whether the effort to invalidate 18,000 gay <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">marriages</span> violates the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">Eighth</span> Amendment of the U.S. <span class="blsp-spelling-corrected" id="SPELLING_ERROR_2">Constitution</span> as well. The Eighth <span class="blsp-spelling-corrected" id="SPELLING_ERROR_3">Amendment</span> prohibits "cruel and unusual punishment". <span class="blsp-spelling-error" id="SPELLING_ERROR_4">If </span>it serves to protect convicted criminals, it certainly should extend to persons who are guilty of <span class="blsp-spelling-corrected" id="SPELLING_ERROR_5">nothing</span> other than engaging in a marriage ceremony at a time when it was legal to do so. Could there be anything crueler to those couples than to now invalidate their marriages? I have read all of the moral and biblical justifications for Proposition 8, as well as the arguments for and against sustaining it, but I find it incredible that the "victors" should want to inflict such <span class="blsp-spelling-corrected" id="SPELLING_ERROR_6">further</span> hurt on a group which has <span class="blsp-spelling-corrected" id="SPELLING_ERROR_7">injured</span> no one by their marriages. The <span class="blsp-spelling-corrected" id="SPELLING_ERROR_8">Constitution</span> prohibits <span class="blsp-spelling-corrected" id="SPELLING_ERROR_9">invidiously</span> discriminatory punishment. The invalidation of these marriages solely based upon the fact that the <span class="blsp-spelling-corrected" id="SPELLING_ERROR_10">participants</span> are gay clearly would be an act of invidious discrimination.<br /><br /><br /></div>H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1tag:blogger.com,1999:blog-5849810809853968671.post-57858112466986576742008-10-30T15:58:00.000-07:002009-05-18T09:12:59.411-07:00SOWELL v SAROKIN, AS POSTER BOYThe National Review has published a syndicated article by Thomas <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Sowell</span> which adds a new fear to the Republican list which grows daily if Barack Obama is elected, but this one is personal. He predicts that Barack Obama is likely to select a Supreme Court Justice just like me. Run for the hills! Out of my 2200 written opinions, he selects as evidence a decision that I rendered in the infamous <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Morristown</span> library case. No matter how many times the conservatives claim that I ruled that a smelly, homeless man could annoy and drive patrons out of the library and harass women,<strong> it won't be true. </strong><br /><strong></strong><br />I declared a library regulation invalid on the grounds that it was too vague and broad in giving librarians the unfettered discretion to oust or forever bar a patron. The Court of Appeals disagreed, but I never made any ruling about the individual or his conduct. It was a decision based strictly on the law and not the facts. I never awarded him any damages, and I certainly said nothing in my ruling which "threatened the town with heavy damage awards" as Dr. <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Sowell</span> claims . Why the case was settled for such a huge amount is a question that should be addressed to the city (or the insurance carriers) who paid it. I cannot conceive of a jury award in such an amount, even if the matter had gone to trial as a result of my decision. The idea that my decision declaring a library regulation invalid could have bankrupted the city is absurd. But I suppose that Dr. <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Sowell</span> likewise believes that I should have continued the wrongful incarceration of Rubin "Hurricane" Carter, since by protecting his constitutional rights, I may have exposed the county that prosecuted him to a suit for damages and possible bankruptcy. In essence, Dr. <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Sowell</span> apparently suggests that rulings on constitutional questions should somehow take into consideration the financial consequences that may befall the losing party. Now that's a criterion worthy of conservative support.<br /><br />Finally, Dr. <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Sowell</span> adds to the fear factor by trotting out the old "soft-on-crime" saw. He claims that Obama judges will "be siding with criminals and terrorists during the lifetime of your children and grandchildren". By siding with criminals and terrorists, I assume he means enforcing the rights and liberties guaranteed by the Constitution----what a bummer. We don't want any of those kind of people sitting on our courts.<br /><br />As for my being the poster boy for Obama appointments to the Supreme Court, I have dedicated my entire professional life to the rule of law, in my view, not a bad criterion for a supreme court justice; nor do I think that "empathy" for the "poor, the African-American, the gay, the disabled or the old" is a <span class="blsp-spelling-error" id="SPELLING_ERROR_6">disqualifier</span> as Dr. <span class="blsp-spelling-error" id="SPELLING_ERROR_7">Sowell</span> contends; rather it should be a requirement.<br /><br />P.S. <em>Even after the reversal by the Court of Appeals, the American Library Association invited me to speak at their annual convention to discuss the case and offer guidance to avoid similar occurrences in the future</em>.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com2tag:blogger.com,1999:blog-5849810809853968671.post-12787255879225452342008-07-01T14:24:00.000-07:002008-07-02T19:17:19.162-07:00JUSTICE SCALIA AND THE PRESUMPTION OF GUILTIn his dissent in the <em>Boumedienne case </em>Justice Scalia argues against the granting of <em>habeas corpus </em>relief on the grounds that 30 of those who have been <strong>voluntarily</strong> released from Guantanamo returned to the battlefield, and thus he claims, more Americans will almost certainly be killed if such relief is granted. Initially, there is substantial debate as to whether his factual predicate is accurate, but even assuming that it is, his logic is chilling.<br /><br />The logic: If detainees receive a hearing, they will be released. Those that are released will return to the battlefield and kill more Americans. Therefore, detainees should not receive a hearing. There are many meritorious arguments against granting <em>habeas </em>relief to detainees in these unique circumstances, but the danger that they might be released after a hearing is not one of them. The argument certainly presupposes that the detainees are guilty, and that the hearings, rather than resulting in freeing the innocent, will be freeing the guilty. It assumes inexplicably that those against whom there is evidence of criminal conduct and/or terrorism, nonetheless will be released.<br /><br />The reason that I find the logic so chilling is because it could be easily extended to anyone charged with a crime (although here the detainees were labelled, but not charged with anything). Justice Scalia seems to be arguing that since a hearing runs the risk of freeing someone who is guilty and likely to commit further crimes, or in this case, acts of terror, that the answer is not to grant them a hearing, but rather leave them confined indefinitely. So persons charged with murder should not receive a trial, because they might be acquitted and murder again. Furthermore, his argument completely ignores the possibility (and the evident likelihood) that many of the detainees are innocent, and at a minimum, should be granted the opportunity to establish it. His argument makes no sense unless one presumes that the detainees are guilty----and therein lies the chill.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com2tag:blogger.com,1999:blog-5849810809853968671.post-25554412194931237272008-06-25T10:31:00.001-07:002008-06-25T11:58:39.625-07:00UNELECTED, POLITICALLY UNACCOUNTABLE JUDGESThe Supreme Court's recent decision regarding the right to <em>habeas corpus </em>by those designated "enemy combatants" has been the subject of heated and extensive debate. I have no intention of discussing the merits, but rather wish to focus on the disappointing use of the phrase "unelected, politically unaccountable judges" by the Chief Justice in his dissent criticizing the majority opinion. That language comes right out of the conservative-Republican playbook. It is code for "liberal activist" judges.<br /><br /><strong>Every</strong> decision by a federal court is rendered by "unelected, politically unaccountable judges", a principle embedded and cherished in the Constitution. There are many meritorious arguments against the extension of <em>habeas </em>writs to enemy combatants, but why demean the Court in the process with the use of this old saw, particularly by the Chief Justice himself. It is vital that the public respects the decisions of the Court even it it disagrees with them. The Chief Justice should engender that respect, not demean it.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1tag:blogger.com,1999:blog-5849810809853968671.post-38832436010335367312008-05-08T15:02:00.000-07:002009-04-02T10:30:02.329-07:00RUSH TO (BAD) JUDGMENTRush Limbaugh has created Operation Chaos and is gleefully pronouncing its success. Its avowed purpose is to create disruption in the Democratic primaries by urging Republicans to cross-over and vote for Hillary Clinton, and thus extend the length and cost of the contest and erode Barack Obama's candidacy. The media and the pundits have focused on whether or not the tactic has been successful as its creator proclaims, but strangely, no one seems to be offended by this obvious attempt to subvert not only the Democratic elections but the democratic process as well.<br /><br />What he has proposed is probably not illegal and undoubtedly constitutes protected speech, but isn't there something inherently wrong with using the airwaves to encourage millions of potential voters to engage in "dirty tricks", because that is all this really is. Republican voters are being asked to cast votes, not for the person of their choice, but merely to subvert the nominating process for the opposing party. Discussions of whether or not he has been successful are besides the point. For someone who purports to represent the conservative viewpoint and principles in this country, apparently respect for the democratic process is not on the list.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com3tag:blogger.com,1999:blog-5849810809853968671.post-59173470143627551192008-04-13T11:15:00.000-07:002008-04-17T21:58:39.203-07:00PRE-EMPTION EQUALS IMMUNITYIn its simplest terms, pre-emption means that where the federal government has acted, the states may not. The concept has a very practical basis. For instance, we could not have 50 states imposing varying regulations upon airlines. Where the federal government has declared a product safe or its warnings adequate, the states may not act to the contrary. If Congress intends to pre-empt the area, the states may not enter it. Contrary or varying state legislation is thus prohibited.<br /><br /><br />The more problematic question arises in respect to jury trials which involve the common law of a state rather than its legislation. A number of current cases are being defended on the basis that FDA approval is an absolute defense, and that permitting juries to find approved products unsafe or approved warnings inadequate violates the principle of pre-emption---the theory being that a jury verdict is a form of state law that runs counter to federal law.<br /><br /><br />The subject has more than a passing interest to me, because I was confronted with the identical issue in the <em>Cippolone </em>case. The tobacco companies argued that the warning labels, mandated by Congress, prohibited a plaintiff from asserting that the warnings were inadequate; that permitting a jury to conclude that different warnings were required, in effect, would be tantamount to state action requiring a revision in the warnings in order to avoid future liability.<br /><br />I struggled with the issue, but ultimately concluded that plaintiff's claims would not be pre-empted, if it was demonstrated that the defendant tobacco companies knew that the warnings were inadequate---that they knew that cigarette smoking was far more dangerous than it "<strong>may</strong> be hazardous to your health." I was also influenced by proffered evidence that the companies were engaged in a concerted campaign to neutralize the warnings through their advertising and public relations. I viewed government standards as a minimum requirement. If a builder knows that a construction standard is unsafe, he should not escape liability by asserting he followed the building code. If the FDA approves a product, the manufacturer, nonetheless, should be liable for injuries sustained, if it knows that the product is unsafe or the approved warnings inadequate.<br /><br /><br />Both the United States Court of Appeals for the Third Circuit and the Supreme Court reviewed my opinion. I will not attempt to summarize what they concluded. Justice Scalia indicated that it gave the courts complicated guidance for future cases, so I will let wiser minds unravel it. When Congress immunized gun manufacturers from liability, I then asked why it would single out an industry to protect that made a product that killed people rather than the drug industry which makes products to save lives. The latter would certainly make more sense. But now that it is on the table, I am not now certain that even the most beneficial industries should receive immunity under the pre-emption doctrine.<br /><br />Considering that government agencies may be overworked, uninformed or even negligent, their approval should create a presumption of safety, but someone injured by the product should be permitted to rebut that presumption by establishing that the manufacturer knew the product was unsafe or its warnings inadequate. Government approval should be a factor, but not necessarily the dispositive one. A person injured by a dangerous, defective or unsafe product should not be barred from recovery merely because the product has received the government's stamp of approval. The manufacturer may have sought that approval, but it is the consumer who has relied upon it. The quest for uniformity should not supersede an individual's right to be compensated.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1tag:blogger.com,1999:blog-5849810809853968671.post-36229687985435658242008-03-25T18:59:00.000-07:002008-03-25T19:24:58.249-07:00END PROSECUTOR PRESS CONFERENCESIt can come as no great surprise that persons engaged in adulterous relationships, deny their existence. If those denials are made under oath, they constitute perjury. Whether or not such perjury warrants prosecution is a matter of discretion for prosecutors. However, once that discretion is exercised in favor of filing charges, prosecutors, in announcing the indictment, should not render their closing argument in a press conference.<br /><br />Wayne County Prosecutor in announcing the indictment against Detroit Mayor Kwame Kilpatrick said: "Our investigation has clearly shown that public dollars were used, people's lives were ruined, the justice system severely mocked and the public trust trampled on." My reaction: Save it for the courtroom!<br /><br />In Denver last year, City Attorney Larry Manzanares committed suicide after being charged with stealing a state-owned computer, which the district attorney announced at a press conference contained pornographic material.<br /><br />Unless prosecutors wish to ally fears by announcing the arrest of persons such as serial murderers or rapists, no legitimate purpose is served by press conferences outlining the evidence against the accused. In the Denver case, the district attorney defended himself by saying that he had treated Mr. Manzanares the same as everyone else. Therein lies the problem.<br /><br />The Duke case should have taught all prosecutors the potential unfairness and dangers of such conduct. Present your evidence and summations in court, not in the media.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1tag:blogger.com,1999:blog-5849810809853968671.post-72834876849147515812008-02-09T10:03:00.000-08:002009-02-15T17:20:31.954-08:00MANDATORY RECUSAL FOR JUDGESAdam <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Liptak</span>, once again, has pointed up one of the failings of our judicial system (<em>N.Y. Times 1/29/08)----</em>namely that judges preside over cases in which lawyers and litigants contributed to the judges' election campaigns. The article cites a study by Professor Vernon Valentine Palmer which indicates that those who contributed had a higher success rate from those judges to whom they had made contributions. Whatever the significance of the study, no evidence of favoritism should be necessary. As Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Liptak</span> and Prof. Palmer both suggest, a judge should <span class="blsp-spelling-error" id="SPELLING_ERROR_2">recuse</span> himself from presiding over any case in which a lawyer or litigant has made a substantial contribution to the judge's election. (Of course, "substantial" needs defining.) The appearance of impropriety is there absent any proof of favoritism; the existence of such proof makes the suggestion even that more compelling.<br /><br />Although Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Liptak</span> indicates that "you do not have to do away with elections", it is certainly a goal worth exploring. The average voter does not have the slightest idea whether or not the person running will make a good judge or even what constitutes the necessary qualities or qualifications. Judges running for re-election are frequently judged on the popularity of their decisions or the lack thereof----hardly a criterion for continued service. The most unpopular judge can be the best. Added to all this is some of the unseemly campaigns and the issue raised by the article about the influence of contributions.<br /><br />Can you imagine a lawyer or a litigant in the middle of a trial walking up to the bench and handing the presiding judge a check! It is difficult to distinguish that scenario from a contribution made at an earlier date. So long as judicial elections exist, the integrity of the system requires that Prof. Palmer's admonition be followed: Judges should <span class="blsp-spelling-error" id="SPELLING_ERROR_4">recuse</span> themselves in cases in which either a lawyer or litigant has made more than a nominal contribution to their election.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com7tag:blogger.com,1999:blog-5849810809853968671.post-8101132247770385302008-01-05T08:59:00.000-08:002008-01-06T17:46:59.634-08:00WILL THE DEMOCRATS FIND A WAY TO LOSE?The Democrats, after receiving a clear mandate from the people, (among their priorities) chose to alienate two of our few remaining and most important allies, by condemning the Turks for their treatment of the Armenians about 100 years ago and the Japanese for their treatment of women about 50 years ago. Although the condemnations may be fully justified, the timing is mystifying. Now, following some of the most inspiring moments in our political history arising from the Iowa caucuses, Congress has decided to take up the burning issue of whether Roger Clemens or Brian McNamee is telling the truth about Clemens' steroid use.<br /><br /><br /><br />While the candidates seeking the country's highest office are debating terrorism, health care, poverty, the environment and education, those <strong>in</strong> office are seeking to determine whether or not a baseball pitcher's earned run average should receive an asterisk! And while on the subject, although I have the greatest respect for Sen. Mitchell, should there not be greater outrage that one person has investigated, convicted, punished and destroyed the reputations of an entire group of persons without charges, a hearing or a trial? The only thing missing seems to be waterboarding.<br /><br />But, in any event, certainly his report has furnished all of the information that anyone, including Congress, could possibly need or want on the subject. I suspect that if the scheduled baseball hearings were sans video, a number of committee members might find the need to attend to more pressing matters.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com4tag:blogger.com,1999:blog-5849810809853968671.post-7071776634978909082007-09-08T09:13:00.000-07:002007-12-19T19:33:51.113-08:00THE GOTCHA GENERATIONI confess that I have never seen the TV program To Catch a Predator, but I have seen the<br />promotions for it. I cannot understand why anyone would want to see these pathetic people humiliated and embarrassed week after week. I suppose the show can be justified on the basis that it provides a warning and serves some deterrent purpose, but it is just as likely to make the predators more cautious, assuming any of them actually watch the program. Finding them and arresting them serves the public good, but televising the moment mystifies me. Joy in the humiliation of others seems like a fairly lame format to justify a TV show (although I suppose American Idol does it for a while).<br /><br />Which brings me to the case of Senator Larry Craig. First let me concede the irrefutable: yes, he pleaded guilty to a crime, <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">albeit</span> disorderly conduct. Yes, he is a hypocrite, as are all of his friends and colleagues who failed to come to his aid. It is quite ironic that it may be his repressive, anti-gay policies and those of his colleagues which may have created the need to seek gay sex in public bathrooms rather than out in the open. Yes, the police officer was doing his job, and it was not entrapment. Yes, prominent persons should not receive preferential treatment. But, should tapping one's foot and waving one's hand in an effort to solicit consenting sex warrant the death penalty?<br /><br />There is very little about the Senator's voting record with which I agree. His hypocrisy offends me much more than his conduct. But I am certain that elected officials have been caught for other disorderly conduct offenses and sent home with a warning by the police officer. The solicitation of sex with a prostitute does not seem to bring ethics charges or demands for resignation from public office. His conduct certainly had nothing to do with the performance of his official duties. Let's face it: it's the "gay thing".<br /><br />Would not a stern warning have sufficed rather than the destruction of an entire lifetime of public service, humiliation for him and his family and his inevitable resignation? Yes, the Senator was stupid and he brought this upon himself, but should we not have some sympathy and compassion for a person in such a high position who feels compelled to seek sex in an airport's men's room? Does the punishment fit the crime; or is this just another TV show celebrating humiliation. Gotcha!H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com2tag:blogger.com,1999:blog-5849810809853968671.post-1237000814104613512007-08-24T10:22:00.000-07:002007-08-28T08:26:45.899-07:00CUT AND RUN OR STAY AND DIE?Neither is a fair characterization of the alternatives. But the Bush administration mocks the Democrats for either their failure to have any plan regarding Iraq or their proposals for troop withdrawals. The administration (always better at devising advertising slogans rather than actually governing) characterizes the Democratic plan as "Cut and Run", and now points to the consequences of leaving Vietnam, citing the killings that followed our withdrawal.<br /><br />No one can quarrel with the noble goal that we should attempt to combat the senseless killings of mass numbers of civilians wherever it should occur. But in deciding when and where to intervene, as part of the equation we must calculate how much we are willing to sacrifice. What would have been the cost in lives and wounded if we had remained in Vietnam? No one asks this President: How many American deaths, disabilities and dollars are you willing to expend in this elusive goal of bringing peace and democracy to Iraq?<br /><br />The <span class="blsp-spelling-corrected" id="SPELLING_ERROR_0">administration's</span> position conjures up this analogy for me: Arsonists (the Administration) start fire to a building, and residents and firefighters are killed. When it appears that the building is about to collapse causing further deaths to both groups, the Arsonists (the Administration) who caused the fire in the first place, take their megaphones to the streets and shout at the spectators (the Democrats): "What are you going to do about this?"<br /><br />Because of the quagmire that this President has created, there may be no adequate solution, but when the Democrats respond with a variety of proposals, only this Administration could say with a straight face-----that proposals to bring the troops home to safety put them in harm's way, while keeping them in Iraq indefinitely---does not!H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-83213575910884841262007-07-31T19:35:00.001-07:002007-08-22T21:43:55.079-07:00YOUR MONEY OR YOUR RIGHTS?Adam Liptak reports in the N.Y. Times (7/16/07) that welfare recipients and applicants in San Diego are subject to unannounced visits and searches to assure that they are not defrauding the government. In other words, those "who want public benefits must give up their privacy", and apparently that means their rights under the Fourth Amendment regarding searches and seizures. Wow, what a great idea!<br /><br />If that is the law and I were a law enforcement officer, I would be so ecstatic I wouldn't know where to begin. First, I think I would be tempted to bust into the offices of the defense contractors to see what evidence I could find of over-billing. But wait, maybe barge into those oil companies with their large subsidies to see whether or not there is any evidence of price fixing. But hold on, what about the cigarette companies and their tobacco subsidies and the possibility of gazing at those scientific reports they have and comparing them with what they have been saying for years to the public about their products.<br /><br />The welfare investigators who happen to come across evidence of other crimes pass that information on to the appropriate law enforcement agency. So if any of the above corporate searches don't hit their original targets, maybe we can still find some tax evasion or bribes just by rummaging through their books in the same way the welfare investigators rummage through drawers looking for men's underwear.<br /><br />However, the corporations receiving tax benefits or subsidies from the government should have the same opt-out options as the welfare recipients. Mr. Liptak points out that "the majority in a divided three-judge panel indicated "that people are free to opt out - by giving up their welfare benefits." In other words, welfare recipients (as in one of those game shows) can keep the money and give up their Fourth Amendment rights, or keep the rights and starve --both themselves and their families. Sounds fair to me.<br /><br />So, corporations should have the same privilege. They can keep their subsidies, their tax breaks, their government contracts as long as they give up their Fourth Amendment rights, or they can retain those rights and give up the benefits. Right!<br /><br />The purpose of these unannounced searches is laudable---to root out welfare fraud. But welfare fraud is a crime, and merely because it is "welfare" should not make the Bill of Rights inapplicable. When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com2tag:blogger.com,1999:blog-5849810809853968671.post-69589353526574072002007-07-12T18:43:00.000-07:002007-07-14T16:09:13.556-07:00THE RESTROOM ATTENDANTS' LOYALTY OATHIn view of the current revelations regarding the administration's suppression and control of the Surgeon General, it is apparent that no branch of the government has escaped politicization. I envision the government's restroom attendants lined up every morning at attention, mops on their shoulders, pails at their sides and hands on their hearts reciting the "Bushie" loyalty pledge.<br /><br />In respect to both the U.S. Attorneys and the Surgeon General, the President's press secretary has said that the President should be able to carry out his own policies. No one can quarrel with that statement, except when those policies further partisan interests rather than the public interest. The administration can properly establish priorities for United States Attorneys in focusing on particular types of criminal activities, but it cannot and should not seek to use the criminal justice system to accomplish political gains or to protect political allies.<br /><br />It can encourage and even direct the Surgeon General to focus on particular scientific and medical areas, but it cannot and should not attempt to conceal reports and information which would serve the public interest. The White House has chosen to deny the accusations of Dr. Carmona that he was directed not to speak about stem cell research, sex education and prison health care and that a report on the dangers of second hand smoke was "watered down" and delayed. (<em>NYTimes 7/11/07)</em> But denials by this administration of any wrongdoing or falsity are so automatic that it is fair to treat them simply as admissions. One only need ask what possible motive could Dr. Carmona have for fabricating all of these stories?<br /><br />But nothing better symbolizes the priorities of the current administration than its efforts to discourage support for the Special Olympics solely because of its historic ties to the dreaded Kennedy clan. Dr. Carmona was asked by a senior official: "Why would you want to help those people?" By those people, he, of course, meant the Kennedys, but in turn, the administration was willing to forgo support of an event and organization that gives encouragement and aid to thousands of special children. But for an administration that would rather see people die than allow stem cell research, it should come as no surprise in a choice between hurting a cause sponsored by the Kennedys or helping that worthy cause because of the good that it does, that they would pick the former over the latter. Politics has infected every corner of this administration, and apparently even the Surgeon General, the country's chief doctor, has suffered from its effects.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com2tag:blogger.com,1999:blog-5849810809853968671.post-30232205217504085572007-07-03T09:48:00.000-07:002007-07-04T15:49:22.147-07:00SEX v. NATIONAL SECURITYEverything that could possibly be said about the commutation of "Scooter" Libby's sentence has been said. Whether or not one accepts the reasons for the President's actions, it is the hypocrisy of those who support it and also sought the impeachment of President Clinton that I find so irksome. President Clinton lied in a <strong>civil</strong> proceeding in an effort to conceal a sexual relationship. True, his conduct and its concealment demeaned the presidency, but it had no relationship whatsoever to the conduct of his office or his administration. Nonetheless, those seeking impeachment were intent upon causing the President of the United States to be removed from office, humiliated and embarrassed, and the nation disgraced in the process.<br /><br />Compare that with the subject matter of Mr. Libby's conduct in a <strong>criminal</strong> investigation and what it was <strong>he</strong> was trying to conceal. The administration sought to discredit a critic of its justification for the war against Iraq; was willing to use secret information to do so, and as a result outed a CIA agent and endangered other operatives as well as our national security. The cover-up involved an outrageous abuse of power to silence opposition to the war and exposed a willingness to take any action to accomplish it, even if illegal.<br /><br />The crimes of perjury and obstruction of justice are serious and in these two cases may be the same on their face, but Mr. Clinton's lie was to avoid causing him and his family embarrassment. The lies of the Bush administration brought us to war, killing and wounding thousands of our own soldiers and innocent citizens of Iraq, brought about world hatred against us, the loss of the respect of our allies and a government, apparently so intent in spreading democracy abroad, that it has forgotten to practice it here at home.<br /><br />The irony is summed up by the fact that no one has been indicted or punished for the outing of Valerie Plame, despite President Bush's assurances that he would do so. The sentence of the one person charged and convicted of covering up the underlying crime has been commuted, and the only person imprisoned as a result, was a newspaper reporter for her stand in protecting the First Amendment.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com3tag:blogger.com,1999:blog-5849810809853968671.post-86728336648452691622007-06-16T09:35:00.000-07:002007-06-16T21:55:19.677-07:00LOST PANTS SUIT v THE SUPREME COURTIt is a toss-up for me as to whether the nation's perception of our judicial system is injured more by the judge who is suing for $54 million over his lost trousers or by the Supreme Court's decision dismissing an appeal that was filed within the time period specifically allowed by a federal judge----on the grounds that it was filed too late!<br /><br />In <em>Bowles v. Russell </em>the petitioner moved to extend the period for filing a notice of appeal. The District Court granted the motion and granted him 17 days to file, rather than the 14 days authorized by the applicable Federal Rule of Appellate Procedure. He filed within the time period prescribed by the District Court order. The Sixth Circuit dismissed the appeal on the grounds that the notice was untimely, and the Supreme Court affirmed, agreeing that, as a result of the untimely filing and despite the petitioner's reliance upon the District Court's order, the Sixth Circuit had no jurisdiction to hear the appeal.<br /><br />The basis for the ruling was that the time period prescribed by Congress was "mandatory and jurisdictional". In doing so the majority chose to ignore that line of cases holding that time prescriptions are not jurisdictional, unless Congress has specifically designated them so. But even if the majority's analysis is correct, it not only failed to create an exception based upon the petitioner's reliance upon the District Court's order, but rather chose to <strong>overrule</strong> existing decisions which would have saved the appeal. I suppose that one cannot argue with the logic that if the time period is "jurisdictional" that a court cannot confer jurisdiction after it ceases to exist, and that neither"unique" nor any other kind of circumstances can confer jurisdiction that has already expired. But this case does not involve a delineation of the kinds of cases that federal courts may hear but rather a rule for processing claims in those matters over which the courts have jurisdiction.<br /><br />But consider these circumstances: The error was brought about solely by the court. The petitioner neither contributed to nor caused it. Actually it is inaccurate to say that the District Court extended the time to 17 days. The Court actually fixed the date by which the appeal was to be filed, and it turned out be 17 days. The mere date would not have put the petitioner or his counsel on notice unless they calculated the elapsed time. There is nothing to indicate that the notice of appeal could not or would not have been filed within the 14 day period, if the order had required it, nor is there any evidence that any party was prejudiced by the 2 day delay. No objection was made by the respondent to the extension, presumably because neither counsel noticed it.<br /><br />The bottom line is we have an appeal dismissed in a murder case (notwithstanding that petitioner filed his notice of appeal in accordance with the time specifically granted him by a United States District Court) on the grounds that the Court exceeded its authority in fixing the time through no fault of the petitioner. Has strict construction replaced all sense of fairness?H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1tag:blogger.com,1999:blog-5849810809853968671.post-2176209889097643932007-06-11T14:59:00.001-07:002007-06-13T12:47:52.822-07:00IS CELEBRITY JUSTICE UNEQUAL?I cannot believe that I am writing about the Paris Hilton case, but I find that it has some significance. The Sheriff in the Paris Hilton case insists that he did not "re-assign" her to home-confinement because of her celebrity status, but rather that it motivated the severity of the sentence imposed by the court. The Sheriff contends that Paris Hilton received a much stiffer sentence than someone else would have received with the same history and charges. And my question: is there anything wrong with that? Would it be appropriate for a court to impose a lengthier sentence upon a person solely because of his or her public persona or position compared to a lesser known person guilty of the same offense, all other things being equal?<br /><br />I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.<br /><br />Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?<br /><br /><p>The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.</p><p></p>I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com0tag:blogger.com,1999:blog-5849810809853968671.post-43991137688788515432007-06-09T09:04:00.000-07:002009-03-28T10:59:53.431-07:00AN OPEN LETTER TO THE VOLOKH CONSPIRACYMy thanks to the <span class="blsp-spelling-error" id="SPELLING_ERROR_0"><span class="blsp-spelling-error" id="SPELLING_ERROR_0">Volokh</span></span> Conspiracy for fulfilling my purpose in starting a blog. I did so in the hope that I could engage and encourage reasonable and rational discourse on a number of topics in which I had an interest. Responses to my posts were rather meager until this week when the <span class="blsp-spelling-error" id="SPELLING_ERROR_1"><span class="blsp-spelling-error" id="SPELLING_ERROR_1">Volokh</span></span> Conspiracy at the instigation of my former law clerk, Eric Muller, referred to my post on X-Judge: <strong>Interrogatories for Prosecutor Fitzgerald. </strong>Frankly, I had hoped that prior posts would have created the same kind of activity, but I have learned as a neophyte in the <span class="blsp-spelling-error" id="SPELLING_ERROR_2"><span class="blsp-spelling-error" id="SPELLING_ERROR_2">blogoshphere</span></span> that they need a boost from such respected and recognized sources as The <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Volokh</span> Conspiracy or Is That Legal?. I thank you both for launching me. I hope that it is only the beginning.<br /><br />The irony is that it was a comment to the <span class="blsp-spelling-error" id="SPELLING_ERROR_3"><span class="blsp-spelling-error" id="SPELLING_ERROR_4">Volokh</span></span> Conspiracy on the day that Prof. Orin Kerr was kind enough to announce the launching of my blog, that caused me to consider ending it the moment it began. Apropos of nothing James <span class="blsp-spelling-error" id="SPELLING_ERROR_4"><span class="blsp-spelling-error" id="SPELLING_ERROR_5">Fulford</span></span> referred readers to Jonathan R. to learn how wrong my decision was in granting <em><span class="blsp-spelling-error" id="SPELLING_ERROR_5"><span class="blsp-spelling-error" id="SPELLING_ERROR_6">habeas</span></span> corpus </em>to Rubin "Hurricane" Carter. I do not know Mr. <span class="blsp-spelling-error" id="SPELLING_ERROR_6"><span class="blsp-spelling-error" id="SPELLING_ERROR_7">Fulford</span></span> or the mysterious Jonathan R or their credentials, but the clear suggestion is that there is where the truth can be found.<br /><br />The article is entitled: <strong>WHAT'S WRONG WITH JUDGE <span class="blsp-spelling-error" id="SPELLING_ERROR_7"><span class="blsp-spelling-error" id="SPELLING_ERROR_8">SAROKIN'S</span></span> DECISION? PLENTY! </strong>The "truth" is placed side-by-side with a column entitled: What <span class="blsp-spelling-error" id="SPELLING_ERROR_8"><span class="blsp-spelling-error" id="SPELLING_ERROR_9">Sarokin</span></span> Says. I have no intention nor the time to go back and review my decision (incidentally written almost 25 years ago) to determine whether or not the quotes attributed to me are accurate. But to take just a few for example, I cannot visualize my saying in an opinion:<br /><br />"Lieutenant <span class="blsp-spelling-error" id="SPELLING_ERROR_9"><span class="blsp-spelling-error" id="SPELLING_ERROR_10">DeSimone's</span></span> testimony on Carter's account of his whereabouts cannot be believed <em>for some reason." </em>or<br />"Anna Brown perjured herself to help her daughter marry a policeman."<br /><br />I know a little bit about my own writing style, and those sure don't sound like me. But even if accurate, virtually none of the "inaccuracies and misstatements" have anything to do with the basis for my decision. I found that the prosecutor made an improper appeal to racism in his closing, and that a false report regarding a lie detector test was used to manipulate a witness (<span class="blsp-spelling-error" id="SPELLING_ERROR_10"><span class="blsp-spelling-error" id="SPELLING_ERROR_11">Bello</span></span>) to return to his original testimony at the first trial that he was outside the bar when the shootings took place and not inside as he was prepared to testify at the second trial (and if my recollection is wrong here---the opinion speaks for itself.)<br /><br />There, indeed, may be factual inaccuracies in my opinion. (The record was over 140,000 pages.)There also are others who disagree with the conclusion, but what astonished and disheartened me was the source of Jonathan R.'s "truth". He did not refer to the lengthy record, the petitioner's briefs and submissions, the unanimous <span class="blsp-spelling-error" id="SPELLING_ERROR_11"><span class="blsp-spelling-error" id="SPELLING_ERROR_12">affirmance</span></span> of my decision by the United States Court of Appeals, nor the denial of <em>cert. </em>by The United States Supreme Court. No, his sole source to conclude that my decision was wrong was the brief of the prosecutor!----the losing party! If that is the test, then I am certain one would conclude that <strong>all</strong> of my decisions <strong>denying</strong> <em><span class="blsp-spelling-error" id="SPELLING_ERROR_12"><span class="blsp-spelling-error" id="SPELLING_ERROR_13">habeas</span></span> corpus </em>relief were also wrong, if one simply compared them against the petitioner's brief.<br /><br />I do not want to spend my time sticking my thumb in the dike of every criticism that flows out against me, but sometimes when someone e<span class="blsp-spelling-error" id="SPELLING_ERROR_13"><span class="blsp-spelling-error" id="SPELLING_ERROR_14">lse's</span></span> finger pokes me in the eye, I feel the need to respond. (As I did with the <span class="blsp-spelling-error" id="SPELLING_ERROR_14">National</span> Review- see X-Judge THE NATIONAL REVIEW RE-TRASHES ME). I know that being out here in space makes me vulnerable, but I hope I can spend the time discussing the issues rather than defending my past---- of which, incidentally I am very proud.<br /><br />My thanks again to Eugene <span class="blsp-spelling-error" id="SPELLING_ERROR_15"><span class="blsp-spelling-error" id="SPELLING_ERROR_15">Volokh</span></span>, Orin Kerr and Eric Muller for giving me the opportunity to be heard, even though I have found that in blogging ---- it is better to give than receive.H. Lee Sarokinhttp://www.blogger.com/profile/13660894957850744176noreply@blogger.com1